Building Professionals Board v Ball [2008] NSWADT 154

Building Professionals Board v Ball [2008] NSWADT 154

The Tribunal was not satisfied that the respondent's conduct fell short of the standard expected of a reasonably competent accredited certifier or that he contravened the Environmental Planning and Assessment Act 1979. Clause C2.4(b) of the Building Code of Australia, as drafted in 2004, did not expressly require perimeter vehicular access to be wholly contained within the allotment, contemplated off-site access by public road, and could achieve its operational purpose through access over adjoining land by easement. The clause was unclear and expert opinion differed. The respondent had carefully considered compliance, arranged access capable of serving the building, and the arrangement...

Jurisdiction
Australia
Judgment Date
27 May 2008
Procedural Posture
Disciplinary Determination Against an Accredited Certifier / Principal Matter; Original Decision
Outcome
Application dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['accredited Certifier' 'construction Certificate' 'fire Safety Schedule' 'building Code of Australia Clause C2.4(b)' 'perimeter Vehicular Access' 'costs']
['administrative Law' 'professional Discipline' 'building and Construction' 'planning and Environmental Law'] ['accredited Certifier' 'construction Certificate' 'fire Safety Schedule' 'building Code of Australia Clause C2.4(b)' 'perimeter Vehicular Access' 'costs']

Case Brief

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Procedural Posture

Disciplinary Determination Against an Accredited Certifier / Principal Matter; Original Decision

Legal Issues

  1. 1 ['Whether the proposed perimeter vehicular access shown on the approved plans complied with the relevant requirements of the Building Code of Australia, including clause C2.4(b).' 'Whether clause C2.4(b) of the Building Code of Australia, as it applied in 2004, required perimeter vehicular access to be wholly contained within the subject allotment or to provide continuous circular access around the building.' 'Whether the retaining wall, external unloading zone, and use of an easement over adjoining land meant that the construction certificate should not have been issued.' 'Whether the fire safety schedule contravened clause 168 of the Environmental Planning & Assessment Regulation 2000 by including perimeter access for emergency vehicles as an essential fire safety measure.' "Whether the respondent's conduct amounted to unsatisfactory professional conduct or professional misconduct, or contravened the Environmental Planning and Assessment Act 1979." 'Whether special circumstances warranted a costs order in favour of the respondent.']

Ratio Decidendi

The Tribunal was not satisfied that the respondent's conduct fell short of the standard expected of a reasonably competent accredited certifier or that he contravened the Environmental Planning and Assessment Act 1979. Clause C2.4(b) of the Building Code of Australia, as drafted in 2004, did not expressly require perimeter vehicular access to be wholly contained within the allotment, contemplated off-site access by public road, and could achieve its operational purpose through access over adjoining land by easement. The clause was unclear and expert opinion differed. The respondent had carefully considered compliance, arranged access capable of serving the building, and the arrangement...

Court Disposition

Application dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['Application dismissed' "Applicant pay the Respondent's costs as agreed or assessed"]